Congress is moving two ambitious domestic policy bills on two procedural tracks.
And that small difference is a big deal.
The $1.2 trillion bipartisan infrastructure bill, aimed at repairing and replacing physical infrastructure such as roads, bridges, and waterways, is being advanced through (more or less) traditional legislative means. Alternatively, a $3.5 trillion social spending and climate bill is being advanced through a process known as budget reconciliation. And while most Americans are more concerned with outcomes than processes, the increasingly common trend of both parties trying to pass large portions of their domestic agendas via reconciliation is yielding a host of unintended consequences, most notably a situation in which legislation is constantly at risk of being undone or undermined when the minority party reassumes power.
As Bill Hoagland, a former senior staffer on the Senate Budget Committee, said:
“Both Democrats and Republicans have mistreated and abused this reconciliation process that was never intended to be used for major, fundamental changes to public policy…and using such a mechanism guarantees that highly partisan legislation emanating from this procedure will be unsustainable over time.”
Reconciliation, a relatively arcane procedural tool, the ordinary definition of which denotes compromise, has become a source of division in our democracy. The New Center decided to dig deeper into the history of reconciliation to understand why it has become so abused and what this means for Congress today.
The Roots of Reconciliation: The 1974 Congressional Budget Act
The budget reconciliation procedure was introduced through the 1974 Congressional Budget Act, and was initially intended for a very specific legislative purpose. In short, budget reconciliation is essentially a process which begins with Congress passing a budget plan (or resolution), instructing committees to write legislation that conforms to the budget plan, and consolidating each committee’s legislation into a reconciliation bill. That is, reconciliation bills were intended to “reconcile” Congress’s budget plan with its actual spending and revenue. The process outlined in the 1974 bill has since been amended several times, but has retained its central purpose.
Because of the procedure’s narrowly defined purpose, the rules of budget reconciliation limit the content of the legislation and the amount of time that Congress has to act.
Thanks to a 1985 amendment known as the Byrd Rule, reconciliation bills are not allowed to include any matter that does not directly impact the federal government’s revenue, spending, or debt limit. The effects of each provision on the spending, revenue, or the debt cannot be “merely incidental.” This is why the Senate parliamentarian—who rules on which policy provisions adhere to the Byrd Rule—removed the $15 national minimum wage from the $1.9 trillion American Rescue plan passed in March 2021. Needless to say, removing all provisions that do not directly impact the budget greatly hamstrings Congress’s ability to pass complete and comprehensive legislation. Put succinctly by the New York Times’ Ezra Klein, “when Congress writes laws through budget reconciliation, it writes them with one arm tied behind its back.”
Moreover, legislating through the budget reconciliation process ensures that policymakers are always in a race against time. According to the Congressional Research Service, reconciliation was initially intended to be a brief process “to make any last-minute changes in pending legislation or current law necessary to bring the budget resolution policies to fruition.” Although legislators adopted several amendments throughout the 1980s to help ease the time constraint, reconciling Congress’s budget plan was intended to take a maximum of two months. While this guideline has been consistently ignored by both Republican and Democratic majorities, legislators clearly still feel pressure to act quickly—evidenced by Democratic congressional leaders aiming to pass the $3.5 trillion reconciliation bill on an accelerated timetable this fall.
Advocates for moving bills through reconciliation argue that it is the only way to avoid gridlock in an oft divided Washington. But highly consequential legislation warrants deliberation and careful consideration—better accomplished through the traditional legislative process. In the past, major legislation has taken months, if not years to develop, debate, and pass. The landmark bipartisan 1986 tax reform bill, for instance, was debated for a total of 323 days before it was signed into law. In contrast, the debate over the current $3.5 trillion reconciliation package is “almost certain to sidestep many of the hallmarks of the legislative process,” according to lawmakers and aides cited in the Washington Post.
Of course, Washington in 2021 looks very different than Washington in 1986 as there seem to be fewer and fewer issues upon which Democrats and Republicans can agree. One can understand why party leaders, when given the choice between doing nothing to address an issue or do something via a limited reconciliation process, choose to try something. But of late, reconciliation isn’t being used as a tool of last resort after bipartisan negotiations break down. Leaders increasingly plow ahead with a purely partisan path before bipartisan negotiations even begin.
Beyond the inherent limitations of enacting policy through budget reconciliation, doing so also often precludes cooperation and reinforces partisanship. Because reconciliation bills are not subject to the filibuster, only a simple majority is needed to pass major legislation. While reconciliation bills don’t necessarily have to be partisan—the 2001 Bush tax cuts were advanced via reconciliation and passed with healthy bipartisan majorities—congressional leaders increasingly see them as a tool to shut out the other party. Indeed, the last three reconciliation bills—the Tax Cuts and Jobs Act of 2017, the American Rescue Plan, and now the $3.5 trillion budget plan—are the three most significant pieces of federal legislation over the past two administrations, and all been enacted or likely will be enacted, without a single minority vote. The exclusion, now commonplace in reconciliation efforts, reinforces partisanship, strengthens polarization, and precludes future cooperation.
In sum, reconciliation was never intended to be the primary vehicle for U.S. policymaking but that is precisely what it has become.
There are many common-sense congressional reforms that would enhance meaningful participation from the minority party, such as ensuring that minority lawmakers have the opportunity to offer amendments on legislative proposals. To illustrate the troubling trend of minority exclusion, the frequency of “open rules” in Congress (rules on debate which permit consideration of amendments for up to five minutes) fell from 81 percent in the mid-1970s to only 12 percent from 2007-2009. During the 115th Congress (2017-2019), the House had zero open rules. To guarantee greater minority participation, Congress should ensure that open debate is the norm, not the exception. To do this, the House Committee on Rules could require a supermajority to change open rules to closed rules. By changing the rules to ensure greater participation from the minority—as opposed to excluding them from the process entirely—Congress will produce better legislation and mitigate the corrosive effects of partisanship and polarization.
In the 47 years since the budget reconciliation process was introduced, it has gradually but inexorably led to more rushed, less vetted, and more partisan legislation that can’t comprehensively address big national problems.
It’s often said in Washington that “process is policy.” Well, the budget reconciliation process is broken, and we’re going to keep getting flawed and partisan policy until Congress summons the will to fix it or to use it in the limited fashion for which it is intended.
Over the past several months, state and local policymakers have been debating the contents of public-school curricula, and Critical Race Theory (CRT) has taken center stage. 26 states have recently proposed legislation that would ban school districts from teaching CRT.
Supporters of these bans, such as Republican Senator Ted Cruz, say that the theory “teach[es] our kids that all white people are racist and there’s nothing you can do about it.”
Meanwhile, when questioned about CRT being taught in elementary and secondary schools, White House Press Secretary Jen Psaki said that “kids should learn about our history…not just the good, but also the challenging.”
According to a Reuters/Ipsos poll, only 57% of Americans say they are familiar with CRT, and of those, a third believe that the theory “says that white people are inherently bad or evil.”
And while much of the debate about CRT in schools is happening on the school district level, the National Association of Educators supported the instruction of CRT, recently asserting “it is reasonable and appropriate for curriculum to be informed by academic frameworks for understanding and interpreting the impact of the past on current society, including critical race theory.”
But what is CRT really? And what kind of changes—to America’s laws, culture and customs—do CRT adherents envision? The New Center decided to dig into the work of the scholars who developed CRT as well as its most prominent contemporary advocates, and to explain, in their own words, the implications that follow:
- “The critical race theory movement is a collection of activists and scholars interested in studying and transforming the relationship among race, racism, and power…Unlike traditional civil rights, which embraces incrementalism and step-by-step progress, critical race theory questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.”
- “erase barriers to upward mobility for minority populations.”
- “It is a way of looking at law’s role platforming, facilitating, producing, and even insulating racial inequality in our country, ranging from health to wealth to segregation to policing.”
- “Critical race theorists were the first to recognize that—despite conservative Americans framing certain laws…as ‘race neutral’ because they did not have any racial language in them—these laws had a racial impact, an impact that led to the reinforcement of racist structures in this country. Critical race theorists are keying on examining the way the law reinforces structures of racism and white supremacy.”
- “the only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.”
- We must accept “the reality that we live in a society in which racism has been internalized and institutionalized,”
- “Black people will never gain full equality in this country. Even those herculean efforts we hail as successful will produce no more than temporary ‘peaks of progress,’ short-lived victories that slide into irrelevance as racial patterns adapt in ways that maintain white dominance.”
-“Americans share a common historical and cultural heritage in which racism has played and still plays a dominant role… a large part of the behavior that produces racial discrimination is influenced by unconscious racial motivation.”
- [America’s judiciary needs] “a new test to trigger judicial recognition of race-based behavior… This test would thus evaluate governmental conduct to determine whether it conveys a symbolic message to which the culture attaches racial significance. A finding that the culture thinks of an allegedly discriminatory governmental action in racial terms would also constitute a finding regarding the beliefs and motivations of the governmental actors: The actors themselves are part of the culture and presumably could not have acted without being influenced by racial considerations, even if they are unaware of their racist beliefs. Therefore, the court would apply strict scrutiny.”
With the Senate’s recent failure to advance a voting rights bill—in the wake of the Democratic led House passing the “For the People Act” (H.R.1)—many congressional Democrats are calling for abolishing the filibuster, which requires most legislation to meet a 60-vote threshold before it can pass.
It is not hard to understand why. As the country has become increasingly polarized, both parties have increasingly used the filibuster, often to obstruct the majority party’s agenda. The number of cloture motions (which means a motion to end debate and take a vote), a serviceable proxy for measuring the frequency of the filibuster, has exploded since the 1970s, with the Brookings Institution noting there have been more of these motions filed “in the last two decades than the 80 years prior.”
The filibuster, however, is a symptom of partisanship and polarization, not its cause. And by eliminating the filibuster entirely, the Senate would be removing one of the last remaining institutional safeguards compelling Senate Democrats and Republicans to work together, resulting in highly variable and volatile federal policymaking.
In her defense of the filibuster, Senator Kyrsten Sinema (D-AZ) writes that the filibuster “helps protect the country from wild swings between opposing policy poles,” and that if it is eliminated, there will be “repeated radical reversals in federal policy, cementing uncertainty, [and] deepening divisions further eroding Americans’ confidence in our government. A world in which everything passes on a party-line vote is a world in which legislation will not last and our entire country could be reinvented every two years depending on which party is in power. Imagine:
- One party forcing through an overhaul of our immigration system in 2021 and then the other party repealing it entirely in 2023;
- Businesses and families living with constant uncertainty; having to make long-term decisions about where to invest or build a factory, how to buy health care, or where to live or get a job, knowing Washington can completely rewrite the rules and regulations governing our lives every two years.
Indeed, there are significant costs associated with unpredictable national policy. On the economic side, uncertainty in national policies reduces long-term capital investments and household spending while increasing unemployment. Moreover, policies that consistently waver depending on majority rule, particularly on the country’s most salient issues, will erode trust in government and reinforce the idea that our politicians govern on behalf of partisan interests, not the common good.
Congresswoman Alexandria Ocasio-Cortez (D-NY) recently argued the opposite, claiming that future concerns about policy reversals should not preclude immediate action, asking, “Well, why do anything at all in case something in the future may change it?” If we allow the legislative pendulum to swing to our political parties’ increasingly polarized ends, the American people will bear the brunt of the costs and our democratic institutions will suffer.
Conservative law professor F. H. Buckley agreed with Ocasio-Cortez, albeit on different grounds, writing that “reversibility should trump screening because it is easier to identify bad laws with the benefit of hindsight.” That assumes our legislators reflect on previous policies with a careful, objective eye. But “bad laws,” for most legislators, are bad because they were enacted by the opposing party, not because they fail to meet a shared, impartial standard of success. Thus, constant policy reversals will tend to the interests of parties, not the American people.
Beyond the pernicious effects of volatile policymaking, repealing the filibuster would likely exacerbate the Senate’s more fundamental problems, partisanship and polarization. Changing the rules to make it easier to work around (instead of with) the minority party would only fuel the fire that underlies the obstructionist ethic, reinforcing partisan tension. Even though gridlock may be temporarily relieved as a result of removing the filibuster, we will likely be left with something far worse.
Bipartisanship is the true remedy for gridlock, because, as Senator Sinema notes, it is the only way to achieve “durable, lasting results.” Beyond cooperation being good in and of itself, the data supports it. According to Dr. Celia Paris of Loyola University, “Bipartisanship really benefits a legislator’s reputation and increases public support for the policy that is getting bipartisan support.” Moreover, a study from Vanderbilt’s Center for the Study of Democratic Institutions found that “legislators who had above average bipartisan scores were 11% more effective [at moving their bills through Congress] than those with below-average scores.”
While the filibuster does not ensure that bipartisanship will be achieved, eliminating it ensures that cooperation is no longer necessary. Even President Biden, whose agenda would presumably become much easier to pass without the filibuster, recently said eliminating it entirely would “throw the entire Congress into chaos.”
Restoring much-needed cooperation in Congress will require far more than keeping the filibuster—it will require the restoration of regular order in our legislative process, holding representatives accountable for inaction, and building an environment of mutuality among our legislators. But by ridding our legislature of this guardrail, we will certainly preclude any long-term solutions.
An interesting but often understated reality about the Biden administration’s approach to Asia is that its stance on China has not significantly wavered from former President Trump. That is, President Biden has continuously deployed competitive rhetoric, maintained Trump-era tariffs, and pushed for more robust ‘Made in America’ policies—all reflective of the past administration’s America First strategy. But, given China’s renewed assertiveness on the global stage, the Biden administration will likely need to deploy a broader strategy to counter its influence.
As Vice President to President Obama, Joe Biden worked to expand American influence throughout Asia through the Trans-Pacific Partnership (TPP), a proposed international trade agreement which included Japan, Australia, and Vietnam, along with nine other countries predominantly concentrated in Southeast Asia. President Obama argued that the measures included in the agreement, such as limitations on tariffs, the establishment of labor standards, and the creation of rules on foreign investment, would allow the United States to “lead the way on global trade.” Though President Trump removed the U.S. from the agreement on the basis of protecting American workers, he later considered rejoining the partnership, recognizing that it may have allowed America to gain a competitive advantage over China.
In the meantime, China has aggressively sought to fill the void left by the failure of TPP. Although the TPP (rebranded as the CPTPP following the United States’ departure) was created for the explicit purpose of mitigating China’s influence, China has recently floated the idea of joining the agreement. Though it is unlikely that China will be a member of the CPTPP any time soon, they have already shored up their economic ties in the region, both in the form of the Regional Comprehensive Economic Partnership (RCEP) and the Belt and Road Initiative.
The RCEP, signed in November 2020, is a 16-country trade agreement that includes many members of the CPTPP such as Japan, Vietnam, and Australia. While the RCEP does not replicate the depth of the CPTPP—in the form of labor protections, environmental standards, or intellectual property law—it does offer China a clear path to improve its relations throughout the region.
The Belt and Road Initiative, described by the Korean newspaper Hankyoreh as an unprecedented “infrastructure investment and development project that involves linking the modernized cities along China’s coast with…countries in South and Central Asia, is perhaps the most pertinent manifestation of this influence. In total, China has invested over 3.7 trillion USD throughout the region, with projects ranging from traditional infrastructure to renewable energy sources.
A few recent moves suggest a more assertive counter from the U.S. and its allies.
For one, Japanese Prime Minister Yoshihide Suga implored the Biden administration to rejoin the CPTPP during an April 2021 meeting. Moreover, President Biden’s recently nominated ambassador to Japan, Rahm Emanuel, has a demonstrated track record of mobilizing large-scale issues through the labyrinth of Congress—a skill that might come in handy in the event the administration needs to push a new trade deal.
And in Congress, an important procedural tool that hastens congressional approval of trade agreements is set to expire on July 1, 2021. The renewal of the Trade Promotion Authority (TPA) would allow Congress to grant the president “conditional constitutional authority to negotiate trade agreements…in exchange [for] guaranteeing the president a simple majority, filibuster-proof vote in both chambers of Congress.” While Biden’s trade representative, Katherine Tai, evaded questions related to TPA renewal during her confirmation hearing, this could present the administration with an opening to expeditiously move an updated Asia-related trade deal through Congress—a move desperately needed if America wants to regain its political and economic standing in the region.
To explore these topics in greater depth, check out The New Center’s recent primer examining the foreign policy challenges the Biden administration will have to face throughout all of Asia.